Point of law : Section 51(b) of the CPC is in nature of an empowering provision, enlisting one of the modes by which a Court could execute a decree, and merely specifies that attachment of properties is not a precondition for their sale, towards execution.

JUDGMENT :

1. The petitioners were the claimants, and the respondents the defendants, in arbitral proceedings which culminated in the passing of a consent award dated 24th May, 2019, of which the petitioners seek execution.

2. The respondents have raised a preliminary objection. They contend that this Court does not possess the territorial jurisdiction to decide this execution petition.

3. Mr. Akhil Sibal, learned Senior Counsel for the petitioners and Mr. Amarjit Singh Chandhiok, learned Senior Counsel for the respondents, were heard at length on the aspect of territorial jurisdiction. A written note of arguments has also been tendered by learned Counsel for the petitioners.

4. This order decides the said objection.

5. Matrix Partners India Investment Holdings, LLC, Matrix Partners India Investments, LLC and Resurgence PE Investments Ltd, the petitioners and award holders are investors and shareholders in Respondent 3 Maharana Infrastructure & Professional Services Ltd (“MIPS”) holding, together, 41.37% of the equity shareholding in MIPS. Respondents 1 and 2 are promoters in MIPS, and respondents 4 to 7 are affiliates of MIPS which, together with MIPS, constitute the “Maharana Group”.

6. Consequent on claims, raised by them against the respondents remaining unsatisfied, arbitration proceedings were initiated. A former Judge of the Supreme Court of India was appointed the arbitrator. During the course of arbitral proceedings, the parties agreed to amicably settle their disputes. Consent Terms of settlement were, therefore, submitted to the learned Arbitrator who passed, on 25th May, 2019, a Consent Award in terms thereof, under Section 30 of the Arbitration and Conciliation Act, 1996 (“the 1996 Act”).

7. The Consent Terms envisaged payment, by the Maharana Group, to the petitioners, of Rs.90 crores, in 3 tranches. The payment was undertaken to be made by the Promoters and/or an Eligible Third Party. The first tranche of Rs.9,00,00,050/– was to be paid within 10 business days of the said award, the second tranche of Rs.9,00,00,050/– within 45 days of the Consent Award, the third tranche of Rs.35,99,99,950/– on or before 31st December, 2019 and the fourth tranche, also of Rs.35,99,99,950/–, on or before 31st March, 2020. It was agreed that these timelines were of the essence of the agreement, and mandated strict adherence. Clause 19 of the Consent Terms stipulated that, were the Maharana Group unable to make payment of any of the tranches in terms of the aforenoted arrangement, the Maharana Group would be jointly and severally liable to pay, to the petitioners, Rs.225 crores, less any tranche payments already made. Clause 16 of the Consent Terms, which is seminal to adjudication of the dispute regarding territorial jurisdiction and which, as it were, constitutes the focal point of the submissions of Mr. Chandhiok, read thus:

“16. The Maharana Group hereby represents to the Investors that payment under these terms shall be achieved by selling the encumbered and unencumbered properties identified in Annexure “C” to these terms (“Annexure C Properties”) which as on the date of these terms have an appropriate value as indicated in the Annexure therein. The Parties agree and acknowledge that if for whatever reason, the Maharana Group is unable to sell the said Annexure C Properties and/or the sale proceeds from the Annexure C Properties is insufficient to meet the payment obligations under these terms, the Maharana Group’s obligations for payment under these terms shall remain unaffected, and the Maharana Group shall under all circumstances ensure complete payment and performance of these terms. The Maharana Group undertakes that all the Annexure C Properties shall be sold by the Maharana Group only for the purpose of making payment to the Investors under the Consent Award, and for no other purpose. In this regard, until receipt by the Investors of the total payment under these terms, the Promoters undertake to provide the Investors with a m